La cláusula de no enajenar en los contratos de mutuo hipotecario

Abstract

The present article reflects on the validity of anti-alienation clauses in mortgage loan contracts. We review if, beyond the wording of the article 2415 of the Chilean Civil Code, there is any interest of the mortgagee that may be protected legally through one of those clauses. The analysis is made, mostly, from the perspective of the Chilean Civil Code and the Act n°19.496, having in consideration that we are in front of an authentic contract of adhesion. The right of pursuit referred in the 2428 article of the Civil Code, and the nullity of the clauses that may be included in the article 16 letter g of the Act n°19496, serve as framework of the analysis. It coordinates the issues raised with the pertinent standards of the Civil Procedure Code, the Act n° 18.010, Banks General Act of and the Regulation of the Conservatory Registry of Real State, especially in attention to what is established in article 13 of the Regulation: ‘The Conservatory may not refuse or delay the enrollments: it must, however, refuse if the inscription is in any sense legally inadmissible’. Also, we reflect about the burdensome effects the clause would have if combined with an acceleration clause.